question

administrative agency

answer

a federal, state, or local government agency established to perform a specific function; administrative agencies are authorized by legislative acts to make and enforce rules to administer and enforce the acts.

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administrative law

answer

the body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.

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allege

answer

to state, recite, assert, or charge.

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analogy

answer

in logical reasoning, an assumption that if two things are similar in some respects, they will be similar in other respects also; often used in legal reasoning to infer the appropriate application of legal principles in a case being decided by referring to previous cases involving different facts but considered to come within the policy underlying the rule.

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appellant

answer

the party who takes an appeal from one court to another.

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appellee

answer

the party against whom the appeal is taken-that is, the party who opposes setting aside of reversing the judgment.

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binding authority

answer

any source of law that a court must follow when deciding a case; binding authorities include constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction.

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breach

answer

to violate a law, by an act or an omission, or to break a legal obligation that one owes to another person or to society.

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case law

answer

the rules of law announced in court decisions; case law includes the aggregate of reported cases that interpret judicial precedents, statues, regulations, and constitutional provisions.

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case on point

answer

a previous case involving factual circumstances and issues that are similar to those in the case before the court.

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chancellor

answer

an advisor to the king at the time of the early king's court of England; individuals petitioned the king for relief when they could not obtain an adequate remedy in a court of law, and these petitions were decided by the chancellor.

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citation

answer

a reference to a publication in which a legal authority-such as a statute or a court decision-or other source can be found.

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civil law

answer

the branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters.

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common law

answer

that body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature.

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constitutional law

answer

law that is based on the U.S. Constitution and the constitutions of the various states.

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court of equity

answer

a court that decides controversies and administers justice according to the rules, principles, and precedents of equity.

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court of law

answer

a court in which the only remedies that could be granted were things of value, such as money damages; in the early English king's courts, courts of law were distinct from courts of equity.

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criminal law

answer

law that defines and governs actions that constitute crimes; generally criminal law has to do with wrongful actions committed against society for which society demands redress.

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cyberlaw

answer

an informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the Internet.

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damages

answer

money sought as a remedy for a breach of contract or for a tortious act.

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defendant

answer

one against whom a lawsuit is brought; the accused person in a criminal proceeding.

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defense

answer

reasons that a defendant offers in an action or suit as to why the plaintiff should not obtain what he or she is seeking.

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equitable maxims

answer

general propositions or principles of law that have to do with fairness (equity).

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executive agency

answer

an administrative agency within the executive branch of government; at the federal level, executive agencies are those within the cabinet departments.

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historical school

answer

a school of legal thought that emphasizes the evolutionary process of law and that looks to the past to discover what the principles of contemporary law should be.

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independent regulatory agency

answer

an administrative agency that is not considered part of the government's executive branch and is not subject to the authority of the president; independent agency officials cannot be removed without cause.

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jurisprudence

answer

the science or philosophy of law.

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laches

answer

the equitable doctrine that bars a party's right to legal action if the party has neglected for an unreasonable length of time to act on his or her rights.

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law

answer

a body of enforceable rules governing relationships among individuals and between individuals and their society.

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legal positivism

answer

legal school of thought that believes that there can be no higher law than a nation's positive law-law created by a particular society at a particular point in time; in contrast to the natural law school, the positivist school maintains that there are no "natural" rights-rights come into existence only when there is a sovereign power (government) to confer and enforce those rights.

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legal realism

answer

a school of legal thought that was popular in the 1920s and 1930s and that challenged many existing jurisprudential assumptions, particularly the assumption that subjective elements play no part in judicial reasoning; legal realists generally advocated a less abstract and more pragmatic approach to the law, an approach that would take into account customary practices and the circumstances in which transactions take places; the school left a lasting imprint on American jurisprudence.

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legal reasoning

answer

the process of reasoning by which a judge harmonizes his or her decision with the judicial decisions or previous cases.

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natural law

answer

the belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature; the natural law school is the oldest and one of the most significant schools of legal thought.

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opinion

answer

a statement by the court expressing the reasons for its decision in a case.

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ordinance

answer

a law passed by a local governing unit, such as a municipality or a county.

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petitioner

answer

in equity practice, a party that initiates a lawsuit.

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plaintiff

answer

one who initiates a lawsuit.

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precedent

answer

a court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts.

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procedural law

answer

rules that define the manner in which the rights and duties of individuals may be enforced.

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public policy

answer

a government policy based on widely held societal values and (usually) expressed or implied in laws or regulations.

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remedy

answer

the relief given to an innocent party to enforce a right or compensate for the violation of a right.

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remedy at law

answer

a remedy available in a court of law; money damages are awarded as a remedy at law.

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remedy in equity

answer

a remedy allowed by courts in situations where remedies at law are not appropriate.; remedies in equity are based on settled rules of fairness, justice, and honesty, and include injunction, specific performance, rescission and restitution, and reformation.

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reporter

answer

a publication in which court cases are published, or reported.

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respondent

answer

in equity practice, the party who answers a bill or other proceeding.

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sociological school

answer

a school of legal thought that views the law as a tool for promoting justice in society.

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stare decisis

answer

a common law doctrine under which judges are obligated to follow the precedents established in prior decisions.

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statute of limitations

answer

a federal or state statute setting the maximum time period during which a certain action can be brought to certain rights enforced.

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statutory law

answer

the body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).

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substantive law

answer

law that defines the rights and duties of individuals with respect to each other, as opposed to procedural law, which defines the manner in which these rights and duties may be enforced.

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syllogism

answer

a form of deductive reasoning consisting of a major premise, a minor premise, and a conclusion.

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uniform law

answer

a model law created by the National Conference of Commissioners on Uniform State Laws and/or the American Law Institute for the states to consider adopting; if the state adopts the law, it becomes statutory law in that state; each state has the option of adopting or rejecting all of part of a uniform law.

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alternative dispute resolution (ADR)

answer

the resolution of disputes in ways other than those involved in the traditional judicial process; negotiation, mediation, and arbitration are forms of ADR.

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American Arbitration Association (AAA)

answer

the major organization offering arbitration services in the United States.

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arbitration

answer

the settling of a dispute by submitting it to disinterested third party (other than a court), who renders a decision; the decision may or may not be legally binding.

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arbitration clause

answer

a clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.

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award

answer

in the context of litigation, the amount of money awarded to a plaintiff in a civil lawsuit as damages; in the context of arbitration, the arbitrator's decision.

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bankruptcy court

answer

a federal court of limited jurisdiction that handles only bankruptcy proceedings; bankruptcy proceedings are governed by federal bankruptcy law.

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concurrent jurisdiction

answer

jurisdiction that exists when two different courts have the power to hear a case; for example, some cases can be heard in either a federal or a state court.

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diversity of citizenship

answer

under Article II, Section 2, of the Constitution, a basis for federal court jurisdiction over a lawsuit between (1) citizens of different states, (2) a foreign country and citizens of a state or of different states, or (3) citizens of a state and citizens or subjects of a foreign country; the amount in controversy must be more than $75,000 before a federal court can take jurisdiction in such cases.

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early neutral cause evaluation

answer

a form of alternative dispute resolution in which a neutral third party evaluates the strengths and weakness of the disputing parties' positions; the evaluator's opinion forms the basis for negotiating a settlement.

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exclusive jurisdiction

answer

jurisdiction that exists when a case can be heard only in a particular court or type of court, such as a federal court or a state court.

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federal question

answer

a question that pertains to the U.S. Constitution, acts of Congress, or treaties; a federal question provides a basis for federal jurisdiction.

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in personam jurisdiction

answer

court jurisdiction over the "person" involved in a legal action; personal jurisdiction.

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in rem jurisdiction

answer

court jurisdiction over a defendant's property.

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judicial review

answer

the process by which courts decide on the constitutionality of legislative enactments and actions of the executive branch.

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jurisdiction

answer

the authority of a court to hear and decide a specific action.

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justiciable controversy

answer

a controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case.

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litigation

answer

the process of resolving a dispute through the court system.

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long arm statute

answer

a state statute that permits a state to obtain personal jurisdiction over nonresident defendants; a defendant must have "minimum contacts" with that state for the statute to apply.

question

mediation

answer

a method od settling disputes outside of court by using the services of a neutral third party, called a mediator; the mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute.

question

mini-trial

answer

a private proceeding in which each party to a dispute argues its position before the other side and vice versa; a neutral third party may be present and act as an advisor if the parties fail to reach an agreement.

question

negotiation

answer

(1) in regard to dispute settlement, a process in which parties attempt to settle their dispute without going to court, with or without attorneys to represent them; (2) in regard to instruments, the transfer of an instrument in such a way that the transferee (the person to whom the instrument is transferred) becomes a holder.

question

online dispute resolution (ODR)

answer

the resolution of disputes with the assistance of organizations that offer dispute-resolution services via the Internet.

question

probate court

answer

a state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person's estate.

question

question of fact

answer

in a lawsuit, an issue involving a factual dispute that can only be decided by a judge (or, in a jury trial, a jury).

question

question of law

answer

in a lawsuit, an issue involving the application or interpretation of a law; therefore, the judge, and not the jury, decides the issue.

question

rule of four

answer

a rule of the United State Supreme Court under which the Court will not issue a writ or certiorari unless at least four justices approve of the decision to issue the writ.

question

small claims court

answer

special courts in which parties may litigate small claims (usually, claims involving $2,500 or less); attorneys are not required in small claims courts, and in many states attorneys are not allowed to represent the parties.

question

standing to sue

answer

the requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit; the plaintiff must demonstrate that he or she either has been injured or threatened with injury.

question

summary jury trial (SJT)

answer

a method of settling disputes in which a trial is held, but the jury's verdict is not binding; the verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow the summary jury trial.

question

venue

answer

the geographical district in which an action is tried and from which the jury is selected.

question

writ of certiorari

answer

a writ from a higher court asking the lower court for the record of a case.

question

affidavit

answer

a written or printed voluntary statement of facts, confirmed by the oath or affirmation of the party making it and made before a person having the authority to administer the oath or affirmation.

question

affirmative defense

answer

a response to a plaintiff's claim that does not deny the plaintiff's facts but attacks the plaintiff's legal right to bring an action; an example is the running of the statute of limitations.

question

answer

procedurally, a defendant's response to the plaintiff's complaint.

question

brief

answer

a formal legal document submitted by the attorney for the appellant-or the appellee (in answer to the appellant's brief)-to an appellate court when a case is appealed; the appellant's brief outlines the facts and issues of the case, the judge's rulings or jury's findings that should be reversed or modified, the applicable law, and the arguments in the client's behalf.

question

closing argument

answer

an argument made after the plaintiff and defendant have rested their cases; closing arguments are made prior to the jury charges.

question

complaint

answer

the pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.

question

counterclaim

answer

a claim made by a defendant in a civil lawsuit that in effect sues the plaintiff.

question

cross-examination

answer

the questioning of an opposing witness during a trial.

question

default judgment

answer

a judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim.

question

deposition

answer

the testimony of a party to a lawsuit or a witness taken under oath before a trial.

question

direct examination

answer

the examination of a witness by the attorney who calls the witness to the stand to testify on behalf of the attorney's clint.

question

discovery

answer

a phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.

question

e-evidence

answer

a type of evidence that consists of computer-generated or electronically recorded information, including e-mail, voice mail, spreadsheets, word-processing documents, and other data.

question

Federal Rules of Civil Procedure (FRCP)

answer

the rules controlling procedural matters in civil trials brought before the federal district courts.

question

hearsay

answer

an oral or written statement made out of court that is later offered in court by a witness (not the person who made the statement) to prove the truth of the matter asserted in the statement; hearsay is generally inadmissible as evidence.

question

interrogatories

answer

a series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit, usually with the assistance of the party's attorney.

question

motion

answer

a procedural request or application presented by an attorney to the court on behalf of a client.

question

motion for a directed verdict

answer

in a state court, a party's request that the judge enter a judgment in his or her favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim; the federal courts refer to this request as a motion for judgment as a matter of law.

question

motion for a judgment as a matter of law

answer

in a state court, a party's request that the judge enter a judgment in his or her favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim; the federal courts refer to this request as a motion for a directed verdict.

question

motion for a new trial

answer

a motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or other reason) that a new trial is necessary to prevent a miscarriage of justice.

question

motion for judgment n.o.v.

answer

a motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury verdict against him or her was unreasonable and erroneous.

question

motion for judgment on the pleadings

answer

a motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial; the motion will be granted only if no facts are in dispute.

question

motion for summary judgment

answer

a motion requesting the court to enter a judgment without proceeding to trial; the motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.

question

motion to dismiss

answer

a pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed.

question

opening statement

answer

a statement made to the jury at the beginning of a trial by a party's attorney, prior to the presentation of evidence; the attorney briefly outlines the evidence that will be offered and the legal theory that will be pursued.

question

pleadings

answer

statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation; the complaint and answer are part of the pleadings.

question

pretrial conference

answer

a conference, scheduled before the trial begins, between the judge and the attorneys litigating the suit; the parties may settle the dispute, clarify the issues, schedule discovery, and so on during the conference.

question

pretrial motion

answer

a written or oral application to a court for a ruling or order, made before trial.

question

rebuttal

answer

the refutation of evidence introduced by an adverse party's attorney.

question

rejoinder

answer

the defendant's answer to the plaintiff's rebuttal.

question

relevant evidence

answer

evidence tending to make a fact at issue in the case more or less probable than it would be without the evidence; only relevant evidence is admissible in court.

question

rules of evidence

answer

rules governing the admissibility of evidence in trial courts.

question

service of process

answer

the delivery of the complain and summons to a defendant.

question

summons

answer

a document informing a defendant that a legal action has been commenced against him or her and that the defendant must appear in court on a certain date to answer the plaintiffs complaint; the document is delivered by a sheriff or any other person so authorized.

question

verdict

answer

a formal decision made by a jury.

question

voir dire

answer

a French phrase meaning, literally, "to see, to speak." In jury trials, the phrase refers to the process in which the attorneys questions prospective jurors to determine whether they are biased or have any connection with a party to the action or with a prospective witness.

question

writ of execution

answer

a court's order, after a judgment has been entered against the debtor, directing the sheriff to seize (levy) and sell any of the debtor's nonexempt real or personal property; the proceeds of the sale are used to pay off the judgment, accrued interest, and costs of the sale; any surplus is paid to the debtor.

question

Bill of Rights

answer

the first ten amendments to the U.S. Constitution.

question

checks and balances

answer

the national government is composed of three separate branches: the executive, the legislative, and the judicial branches; each branch of the government exercises a check on the actions of the others.

question

commerce clause

answer

the provision in Article I, Section 8, of the U.S. Constitution that gives Congress the power to regulate interstate commerce.

question

due process clause

answer

the provisions of the Fifth and Fourteenth Amendments to the Constitution that guarantee that no person shall be deprived of life, liberty, or property without due process of law; similar clauses are found in most state constitutions.

question

equal protection clause

answer

the provision in the Fourteenth Amendment to the Constitution that guarantees that no state will "deny to any person within its jurisdiction the equal protection of the laws;" this clause mandates that state governments treat similarly situated individuals in a similar manner.

question

establishment clause

answer

the provision in the First Amendment of the Constitution that prohibits Congress from creating any law "respecting an establishment or religion."

question

federal form of government

answer

a system of government in which the states form a union and the sovereign power is divided between a central government and the member states.

question

filtering software

answer

a computer program that includes a pattern through which data are passed; when designed to block access to certain websites, the pattern blocks the retrieval of a site whose URL or key words are on a list within the program.

question

free exercise clause

answer

the provision in the First Amendment to the U.S. Constitution that prohibits Congress from making any law "prohibiting free exercise" of religion.

question

full faith and credit clause

answer

a clause in Article IV, Section 1, of the Constitution that provides that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state;" the clause ensures that rights established under deeds, wills, contracts, and the like in one state will be honored by the other states and that any judicial decision with respect to such property rights will be honored and enforced in all states.

question

meta tags

answer

words inserted into a website's keywords field to increase the site's appearance in search engine results.

question

police powers

answer

powers possessed by states as part of their inherent sovereignty; these powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare.

question

preemption

answer

a doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.

question

privileges and immunities clause

answer

special rights and exemptions provided by law; Article IV, Section 2, of the Constitution requires states not to discriminate against one another's citizens; a resident of one state cannot be treated as an alien when in another state; he or she may not be denied such privileges and immunities as legal protection, access to courts, travel rights, and property rights.

question

probable cause

answer

reasonable grounds to believe the existence of facts warranting certain actions, such as the search or arrest of a person.

question

search warrant

answer

an order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property.

question

supremacy clause

answer

the provision in Article IV of the Constitution that provides the the Constitution, laws, and treaties of the United States are "the supreme law of the land;" under this clause, state and local laws that directly conflict with federal law will be rendered invalid.

question

symbolic speech

answer

nonverbal conduct that expresses opinions or thoughts about a subject; symbolic speech is protected under the First Amendment's guarantee of freedom of speech.

Business Law Exam 1 (ch. 1-4) – Flashcards

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